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The potential uses of the Wayback Machine in IP litigation are powerful and diverse. Historical versions of an opposing party’s website could contain useful admissions or, in the case of patent disputes, invalidating prior art. Date-stamped websites can also contain proof of past infringing use of copyrighted or trademarked content.
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At the end of last month, the Court granted, on two independent grounds, the plaintiff’s motion in limine to admit the screenshots. First, the testimony of the Internet Archive employee was sufficient to authenticate the screenshots because the employee had personal knowledge of the content of the archive. The court rejected defendant’s argument that the screenshots are unreliable because the Wayback Machine does not capture everything that was on the site (for example, sometimes images are omitted, or not all pages of a website are updated at once). The court stated:

[T]he fact that the Wayback Machine doesn’t capture everything that was on those sites does not bear on whether the things that were captured were in fact on those sites. There is no suggestion or evidence … that the Wayback Machine ever adds material to sites.

Second, the court held that regardless of whether plaintiff sufficiently authenticated the screenshots, the court can take judicial notice of the historical content of defendant’s website. The court noted that the issue here is the content of the defendant’s own website, and the defendant has not explained why the Wayback Machine’s archive of its website is unreliable or inaccurate. Accordingly, under Federal Rule of Evidence 201, the historical content of defendant’s website “can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.”

jaclaz
_________________- In theory there is no difference between theory and practice, but in practice there is. -